Current Affairs

Last week was an exciting week at the Nichols Law Firm as I (Chris Nichols) assumed the presidency of the North Carolina Advocates for Justice.  NCAJ is one of the largest state trial lawyer's associations in the United States.

My law school covered the event.

 

Chris Nichols

www.NicholsTrialLaw.com

www.NicholsTrialLaw.com 1.800.906.5984

North Carolina Supreme Court Historical Society: 20th Annual Meeting Thursday, October 27, 201

Lawyers:

The North Carolina Supreme Court Historical Society invites you to attend the 20th Annual Meeting and Dinner on Thursday, October 27, 2011.  The dinner will be at the Carolina Country Club, 2500 Glenwood Avenue, in Raleigh, North Carolina.  The reception starts at 6:00 PM and dinner starts at 7:00 PM.  The speaker will be Scott A. Miskimon of Smith Anderson.

Portrait_JohnLouisTaylor

 To register, go to this web page:http://www.ncschs.net/Event_Registration.aspx?eventid=5The NC Supreme Court Historical Society was established in 1991 for the purpose of preserving the legal heritage of North Carolina. The Society’s sole purpose is to collect and preserve the history of the court, including attorneys and others who interact with the judicial system, as well as the cases that may be generated from those interactions.

www.NicholsTrialLaw.com 1.800.906.5984

NC Senate Bill 33 and Loss of Liberty: How the NC GOP rolls back 235 years of independence and makes big PHARMA the new "King"

Two Hundred and Thirty-five years ago to the day, North Carolina was the first of the Colonies to authorize its delegates to declare independence from Great Britain.  

So how is this relevant to "tort reform" and the pending legislation called Senate Bill 33 in the North Carolina House?  Well, this law, proposed by Rep. Johnathan Rhyne (R- Lincolnton), takes away an essential ingredient of Liberty of the people of North Carolina-  The right to a jury trial.

Rep. Rhyne's bill says that when a citizen is hurt or killed by a negligent emergency room physician, or nurse, or hospital worker, that injured person has no right to sue for negligence.  Further, the bill says that when a citizen of North Carolina is injured or killed by a defective drug manufactured ANYWHERE in the world, that citizen can not sue the manufacturer if the drug has been "approved" by a state or federal agency.  Taking away the "right to redress" or "the right to sue" is the same as depriving someone the right to a jury trial.  If you can't sue, you can't get a jury.  The doors to the court house are closed to these people.

The Halifax resolves speciically address the right to trial by jury.  In the Resolves the authors talk about the King seizing "Ships belonging to America" which "are declared prizes of War" and that the colonies have been deprived the legal right to get these ships back or enter into a process of determining the legal rights to the ships:  "And ...the United Colonies and their sincere desire to be reconciled to the mother Country on Constitutional Principles, have procured no mitigation of the aforesaid Wrongs and usurpations and no hopes remain of obtaining redress by those Means alone which have been hitherto tried."

Rep. Rhyne's proposed legislation takes us back to the days of being subjugated to the King and the Crown.  Of course, one might make the distinction that under Rhyne's law, the State of North Carolina is not "profiting" from the people.  That is true, but Rhyne's law is even WORSE.

Under Rhyne's proposals, the State of North Carolina not only denies "obtaining redress" but does so to the financial advantage of international drug companies and for-profit hospitals and corporate physician groups.

This law is a glaring example of "Big Government" taking fundamental liberties of THE PEOPLE and redistributing the spoils of war to anti-liberty, big monied cronies.

Thomas Jefferson, the author of the Declaration of Independence and the third President of the United States, said, "I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution."

Senate Bill 33 takes away the trial by jury of people injured by negligent doctors and also those hurt or killed by defective drug products. These people are completely deprived of their liberty to hold bad actors accountable for their wrongs.

Why is the NC GOP rolling back our rights to pre-independence days?

Why did certain colonists remain loyal to the King? Scholars say one unifying characteristics of Loyalists to the Crown during the Revolution was this:  They had a long-standing sentimental attachment to Britain, often with business ties.  Also known as MONEY. 

How much did Rep. Jonathan Rhyne take from Big PHARMA and Medical Lobbyists?

PLEASE: preserve your liberty and rights. Call Anyone on this list and tell them to vote NO to SB33: https://spreadsheets.google.com/ccc?key=0AlinyCcVT4eGdGZLZU95VTREcW12RXBoLXlKU2paSWc&hl=en#gid=0

The below is from:  http://ncpedia.org/history/usrevolution/halifax-resolves

HALIFAX RESOLVES

Excerpted from "Historical Miscellanea: An Early History of North Carolina," North Carolina Manual, 1991-1992, published biennially by the NC Department of the Secretary of State.

Halifax Resolves

North Carolina, on April 12, 1776, authorized her delegates to the Continental Congress to vote for independence. This was the first official action by a colony calling for independence. The 83 delegates present in Halifax at the Fourth Provincial Congress unanimously adopted the Halifax Resolves, which read as follows:

The Select Committee taking into Consideration the usurpations and violences attempted and committed by the King and Parliament of Britain against America, and the further Measures to be taken for frustrating the same, and for the better defence of this province reported as follows, to wit,

It appears to your Committee that pursuant to the Plan concerted by the British Ministry for subjugating America, the King and Parliament of Great Britain have usurped a Power over the Persons and Properties of the People unlimited and uncontrouled and disregarding their humble Petitions for Peace, Liberty and safety, have made divers Legislative Acts, denouncing War Famine and every Species of Calamity daily employed in destroying the People and committing the most horrid devastations on the Country. That Governors in different Colonies have declared Protection to Slaves who should imbrue their Hands in the Blood of their Masters. That the Ships belonging to America are declared prizes of War and many of them have been violently seized and confiscated in consequence of which multitudes of the people have been destroyed or from easy Circumstances reduced to the most Lamentable distress.

And whereas the moderation hitherto manifested by the United Colonies and their sincere desire to be reconciled to the mother Country on Constitutional Principles, have procured no mitigation of the aforesaid Wrongs and usurpations and no hopes remain of obtaining redress by those Means alone which have been hitherto tried, Your Committee are of Opinion that the house should enter into the following Resolve, to wit

Resolved that the delegates for this Colony in the Continental Congress be impowered to concur with the other delegates of the other Colonies in declaring Independency, and forming foreign Alliances, resolving to this Colony the Sole, and Exclusive right of forming a Constitution and Laws for this Colony, and of appointing delegates from time to time (under the direction of a general Representation thereof to meet the delegates of the other Colonies for such purposes as shall be hereafter pointed out.

Hooper, HewesBW, PennThe Halifax Resolves were important not only because they were the first official action calling for independence, but also because they were not unilateral recommendations. They were instead recommendations directed to all the colonies and their delegates assembled at the Continental Congress in Philadelphia. Virginia followed with her own recommendations soon after the adoption of the Halifax Resolution, and eventually on July 4, the final draft of the Declaration of Independence was signed. William Hooper, Joseph Hewes, and John Penn were the delegates from North Carolina who signed the Declaration of Independence.

www.NicholsTrialLaw.com 1.800.906.5984

Will NC be the worst state for manufacturers? The unintended consequence of HB 542: Destroys insurance and business subrogation for losses from product fauilure

I am attaching below the letter I sent to three members of the North Carolina House Select Committee on Tort Reform.

I believe that House Bill 542 may "look" good for business but have the unintended consequence of making North Carolina the WORST place for manufacturing in the entire United States.  I've inserted a few comments below in [BOLD]  brackets.

Rep. Stam, Rep. Weiss, and Rep. Murray:

I am a lawyer, like each of you, and I would like to call to your attention what I think is a major unintended consequence of HB 542.  I called each of your offices today to discuss this issue.

HB 542 destroys the right of a NC manufacturer and their insurance company to subrogate on catastrophic losses caused by defective products.  This hurts manufacturing, business, and insurance interests in North Carolina.

Please read the below example:

Products Liability Immunity Destroys Business and Insurance Subrogation:  HB 542 gives immunity from suit to any company that produces a faulty product that has been "approved for sale" by any State of Federal regulatory agency.  This bar would apply to insurance subrogation claims against the original tortfeasor and therefore bars insurance companies and the self-insured from recouping losses caused by faulty products.

EXAMPLE.  Power Plant Explosion:  A North Carolina power company buys a defective industrial boiler from a Chinese (or any) manufacturing company. This product is "approved" by several state and federal agencies as required by law."  [Does this sound like the Apex Chemical explosion?]

That boiler explodes and spreads toxic ash over a 3 mile radius. The environment is polluted, people are made sick, and the business site is shut down. The NC business itself suffers a $300 Million dollar business and property damage loss and is sued by the State and citizens for the toxic ash injuries.  The insurer for the power company  (or self-insured company itself) must pay for the business loss, claims of injuries and property loss, but would be prohibited by HB542 from seeking a recovery from the negligent Chinese manufacturer.  The State of North Carolina would be prohibited from seeking compensation for the loss to the environment and the toxic clean up costs. This will increase the cost of insurance for business and the State and possibly force insurers to stop insuring for loss from product defect.

HB542 uses the following definitions:  [See page 8 of HB542] " (1) "Claimant" means a person or other entity asserting a claim"

"Product liability action" includes any action brought for or on account of personal injury, death or property damage caused by or resulting from the manufacture, construction, design, formulation, development of standards, preparation, processing, assembly, testing, listing, certifying, warning, instructing, marketing, selling, advertising, packaging, or labeling of any product."  (Emphasis added)

"No manufacturer or seller shall be held liable in any product liability action if any one of the following apply:"

Under this very simple language above, businesses that suffer catastrophic losses due to product defects will NOT be able to recoup those loses.

Moreover, what will be the effect on Business Insurance Policies?  A standard loss policy would have language like the following:

 "If we pay a claim under your policy, we will take over your right to recover that amount from any other person or organization. You agree to cooperate with us and not do anything that will interfere with our chances of recovery".

Insurers would be subrogated to the right of the North Carolina company.  Because subrogation is "the substitution of one person in the place of another with reference to a lawful claim, demand, or right, so that he who is substituted succeeds to the rights of the other in relation to the debt or claim, and its rights, remedies, or securities," the North Carolina Company would have no right to recover under HB542 and thus the insurance company would be subrogated to nothing.

North Carolina will be the ONLY state in the nation with such a law.

This raises many difficult questions:

1)  Will insurance companies issue large commercial policies to North Carolina manufacturers know there will be no right to subrogate in failed products cases?  Can businesses operate without this insurance?

2)  Will North Carolina manufacturers receive insurance rate increases due to the higher cost risk for North Carolina claims?

3)  Will manufacturers avoid locating in North Carolina because they will not be protected from defective products they purchase for their business?

4)  Will insurance products for consumers be impacted by the lack of subrogation for faulty manufacturing?  Will home owner insurance rates increase due to the number of fires caused by defective products where there will be no subrogatable interest for the insurance company?

5)  Why would a manufacturer choose North Carolina over 49 other states  knowing that it had no protections from faulty products within its own facility?


I ask that you stop HB542 before it further erodes North Carolina's business economy.

Chris Nichols

________________________________

(update) 

A non-hypotehtical Example of Products Liability Subrogation In Insurance

Here is an excellent example of how subrogation works in the context of product liability claims.  This is a blog post from Cozen O'Conner, a national law firm that helps insurance companies recover funds from manufacturers of defective produts when those products cause damage which is insured.  Here is a link to their full blog post. Lasko Recalls 4.8 Million Box Fans

The case involved a massive barn fire at a breeding farm in Hondo, New Mexico. Six world class race horse breeding stallions were killed in the fire and the barn itself was totaled. Cozen O’Connor represented over sixty sophisticated horsemen clients who had ownership interests in the stallions, and their insurers. The insurers for the horses and the barn went to great lengths to preserve the fire scene, and as a direct result of their diligence the experts were able to examine each electrical device in the barn and identify the fatal flaw in the Lasko fan motor.

On March 24th (long after the fire) the Consumer Product Safety Commission announced a voluntary recall of 4.8 million Lasko box fans. The recall notice reports “an electrical failure in the fan’s motor poses a fire hazard to consumers.” The CPSC cites a “barn fire resulting in extensive property damage” as a basis for the recall.

If this fire had occurred in North Carolina under House Bill 542, the lawyers at Cozen O'Conner would have been barred from seeking recovery from Lasko.  The insurer would have paid out millions and not been reimbursed by the negligent manufacturer of the fan.  And who would absorb the cost of the unreimbursed expenses?  Anyone who buys insurance.

_______________________________________

Hopefully this will make a difference.  This bill is not just about people injured by defective products, but also business.

This is an actual photo of the Apex, NC plant explosion at a chemical storage facility.

RLK_EQ_Fire

www.NicholsTrialLaw.com 1.800.906.5984

House Bill 542: NC to be dumping ground for dangerous products

The North Carolina House introduced House Bill  542 on March 30.  This bill grants immunity from suit to any product "regulated" by a State or Federal Agency.  This Bill will make NC a dangerous dumping ground for poisonous and defective drugs and products.

 The Bill was filed, all of 18 hours before it was debated.  House Bill 542

Here is the relevant language: 

No manufacturer or seller shall be held liable in any product liability action if:

1. The product alleged to have caused harm was designed, manufactured, packaged, labeled, sold, or represented in relevant and material respects in accordance with the terms of approval, license or similar determination of a government agency, where the approval, license or similar determination is relevant to the event or risk allegedly causing the harm; or

2. The product was in compliance with a statute of this State or the United States, ...where the stature or agency action is relevant to the event or risk allegedly causing harm....

This is HUGE.

This means that a product regulated by ANY state or Federal agency would be immune from suit by North Carolina citizens who are hurt or maimed by the product which is eventually found defective.

Think:  bad tires, bad cars, Vioxx, bad drugs, toys containing lead or poison, etc.

Here is a "short" list of products whose manufacturers would be immune from a law suit if that product killed you or hurt you or someone you love.

Manufacturers of 328 Types of Products regulated and approved by the US Agencies will receive IMMUNITY from law suits for defective products that maim, kill and destroy property and people.

The manufactures of defective products would receive immunity from suit because the agency is "vested with the authority of this State or of the United States to issue rules, regulations, orders, or standards, concerning the design, manufacture, packaging, labeling, or advertising of a product or a service." Tort Reform for Citizens and Businesses: Section 3.1(b) amendment to Chapter 99B-1 (1a)

 

US Consumer Product Safety Commission (USCPSC) Regulated Products

 

Acetaminophen (products containing)

Acetic acid (products containing)

Adhesives -containing methyl alcohol

Adhesives -extremely flammable contact

Adhesives -floor covering

Adhesives nitrocellulose base

Aerosols (see self-pressurized products)

Ammonia, ammonia water (products containing) household, ammonium hydroxide

Antennas – CB base station and TV

Antennas -Omnidirectional CB base station

Antifreeze, ethylene glycol

Antiquing kits

Appliances, coal and wood-burning

Architectural glazing materials

Art Materials

Artist's paints

Asbestos- containing patching compounds

Asbestos -containing garments for general use

Aspirin products

Baby bouncers & walkers

Baby playing with toy

Balloons, plastic mixtures

Batteries, storage, wet-cell

Benzene paint solvents containing

Bicycles

Bicycle helmets

Biological specimens, preserved

Blasting caps

Bunk Beds

Butane in cigarette lighters

Carbolic acid (phenol) (products containing)

Carbon tetrachloride (products containing)

Carpets and rugs (large)

Carpets and rugs (small)

Caustic poisons (products containing)

Caustic poisons – potash (products containing)

Caustic poisons – soda (products containing)

Cellulose insulation

Cellulose sponges

Charcoal briquettes

Chemistry sets

Child-resistant packaging (see special packaging)

Chlorofluorocarbons, self pressurized products containing Acetonitrile (see glue remover)

Aluminized polyester film kite

Asbestos -containing artificial emberizing materials

Benzene (products containing) benzol

Bergamot oil (products containing)

Betamethasone (products containing)

Children's Products (see "Toys/Children's Products")

Cigarette lighters

Cleaning products

Clothing (see wearing apparel, sleepwear)

Coal burning appliances (see appliances)

Combustible hazardous substances

Conjugated estrogen tablets (products containing)

Consumer product

Containers consumer-owned (portable)

Controlled drugs (products containing)

Corrosive substances (products containing)

Cosmetics

Cribs -full size

Cribs -non-full size

Cribrecall2010-370

Cushions, infant

Cyanide salts (products containing)

Dietary supplements, iron-containing (products containing)

Disclaimer deceptive use of

Dive Sticks

Drain cleaners, liquid

Drugs, Oral Prescription -All Exceptions

Drugs -controlled

Drugs -iron containing

Drugs -oral prescription

Vioxx

Drugs -over the counter

Dry-cleaning solvents

Epoxy resins

Ethylene glycol (products containing)

Ethylene glycol in felt pads

Exports (noncomplying products)

Extremely flammable contents of self-pressurized containers

Extremely flammable hazardous substances

Extremely flammable solids

Eye irritants (products containing)

Fabrics

Felt-tip marking devices

Cholestyramine, anhydrous (products containing)

Clacker balls

Colestipol (products containing)

Dibucaine (products containing)

Diethylene glycol (products containing)

Diethylenetriamine (products containing)

Diglycidyl ethers (products containing)

Diphenhydramine preparations

Emberizing materials artificial, containing asbestos

Erythromycin ethylsuccinate, Suspension & granules

for suspension (products containing)

Erythromycin ethylsuccinate, tablets (products containing)

Ethanol containing mouthwash

Ethylenediamine (products containing)

Ferrous oxalate (products containing)

Fire extinguishers

Fireworks

First Aid

Flammable contents of self-pressurized containers

Flammable solids (products containing)

Flammable substances (products containing)

Fluoride (products containing)

Food

Formaldehyde (products containing)

Fuel

Furniture painted with lead containing paint

Furniture polish -liquid

Furniture polish -paste

Garage Door Openers- automatic residential

Gasoline

Glazing compounds

Heaters (see appliances)

Highly toxic substances (products containing)

Household substances

Hydrocarbons

Hydrochloric acid (products containing)

Ibuprofen (products containing)

Imported products & importers

Imports

Industrial supplies

Infant cushions

Ink cartridges dry concentrate containers

Ink-marking devices

Insulation, cellulose

Iron preparations

Irritant substances

Kerosene

Kindling & illuminating preparations

Labels

Laboratory chemicals (if educational)

Lacquers

Lawn darts

Lawnmowers power

Fertilizersdry

granular

Fuel kits with diflouro dichloromethane

Glue remover containing acetonitrile (household)

Hartshorn (products containing)

Hypochlorous acid (products containing)

Isobutane in cigarette lighters

Isosorbide dinitrate -prescription sublingual and chewable forms (products containing)

Ketoprofen (products containing)

Kites aluminized polyester film

Lead in paint (products containing)

Lighter fluid, etc. (products containing)

Lunar caustic (silver nitrate) (products containing)

Lye (products containing)

Matchbooks

Matches

Mattresses (cigarette ignition)

Mattresses (open flame ignition)

Methyl alcohol (methanol) (products containing)

Mineral oil in toys (products containing)

Mineral seal oil (products containing)

Mineral spirits (products containing)

Minoxidil (products containing)

Mirrors

Mixtures of hazardous substances

Mouthwash containing ethanol

Multiple hazard substances with

Multipurpose Lighters

Lighter

Naphtha (products containing)

Neutralizers, Permanent Wave (see Permanent Wave Neutralizers)

Nitric acid (products containing)

Nitroglycerine prescription (products containing)

Oral contraceptives

Orris root powdered (products containing)

Over-the-Counter (OTC) Drugs (see Drugs, Over the Counter)

Oxalic acid and salts (products containing)

Packages, child resistance (see child-resistant packaging)

Packages, sample

Paint (lead in) (products containing)

Paint solvents

Painting kits

Paper items

Patching compounds containing asbestos

Percussion explosives

Lidocaine (products containing)

Loperamide (products containing)

Mebendazole (products containing)

Medroxyprogesterone acetate tablets (products containing)

Methacrylic acid (products containing)

Methylprednisolone (products containing)

Methyl salicylate (products containing)

Naproxen (products containing)

Nitrites (Butyl and Volatile Alkyl)

Norethindrone acetate tablets (products containing)

Pacifiers (see Toys/Children's Products)

Pancrelipase (products containing)

Paraphenylenediamine (products containing)

Perchloroethylene in visual novelty devices

Petroleum distillates

Photographic color processing kits

Plant foods -dry granular

Poisons, caustic (products containing)

Polishing products

Potassium hydroxide

Prescription Drugs (Oral)

Pressure-generating substances

Propellant devices for model rockets

Radiator cleaners

Radioactive substances

Refrigerator doors

Refuse bins -unstable

Roof coatings

Rope, cord, string, etc.

Rugs see Carpets

Rubber vulcanizing products

Self-pressurized products

Self-pressurized products containing vinyl chloride

Sensitizers (products containing)

Signal words

Sodium hydroxide

Solder kit

Solder paste

Permanent wave neutralizers containing sodium bromate or potassium bromate

Phenol (carbolic acid)

Photodynamic sensitizer

Potash, caustic

Potassium supplements effervescent

(products containing)

Prednisone

Primary irritant

Sacrosidase (sucrase) in a solution of glycerol and water

Salt (sodium chloride)

Self-pressurized products containing chloroflorocarbons

Silver nitrate (lunar caustic)

Sleepwear, children's, sizes 0-6x & sizes 7-14

Sodium arsenite

Sodium fluoride

Sodium/potassium hydroxide

Special packaging

Spot removers single-use

Spot removing kits

Sponges, cellulose

Swimming pool slides

Tank coatings

Thread, string, twine, etc.

Turpentine (products containing)

Varnish

Video games

Vienna paste (products containing)

Vinyl chloride (products containing)

Solvents (for Paint and other surface coatings)

Stoddard solvent

Stoves, coal & wood burning

Strong sensitizers

Sulfuric acid

Toluene (toluol)

Toxic substances

Toys/Children's Products- All

Toys/Children's Products- choking hazard warnings for small parts, balloons, marbles, balls

Toys/Children's Products- balls, small

Toys/Children's Products- caps & toy guns producing, impulse-type sound

Toys/Children's Products- choking incidents

Toys/Children's Products- clacker balls

Toys/Children's Products- electrically-operated toys and children's article

Toys/Children's Products- games, self-pressurized -hollow plastic toys games

Toys/Children's Products- marbles

Toys/Children's Products- mineral oil

Toys/Children's Products- painted with lead or containing lead

Toys/Children's Products- pacifiers

Toys/Children's Products -rattles

Toys/Children's Products -sharp edges

Toys/Children's Products -sharp points

Toys/Children's Products -small parts

Choking-hazard-label

Toys/Children's Products -model rockets

Toys/Children's Products -model rockets, propellant

Toys/Children's Products -train smoke

Toys/Children's Products -use and abuse tests

Toys/Children's Products -tubes, collapsible metal (labeling)

Toys/Children's Products -unpackaged hazardous substances (labeling)

Vinyl plastic film

Walker-jumper

Wax containers

Waxes, paste for autos, furniture, floors and shoes

Wearing apparel

Writing instruments

Visual novelty devices -containing perchloroethylene

Volatile flammable materials

Water-repellent mixtures (masonry)

Wood burning appliances

Xylene (xylol)

 

Federal Drug Administration (FDA) PRODUCTS

 

Food safety

Rotten-meat-in-slices-thumb17104917

Tobacco products

Dietary supplements

Prescription and over-the-counter pharmaceutical Drugs

Vaccines

Biopharmaceuticals

Blood transfusions

Blood-transfusion-infections

Gene therapy

Cell and tissue based products

Medical devices

Electromagnetic radiation emitting devices (ERED)

cellular phones

airport baggage screening equipment

television receivers

microwave ovens

tanning booths

laser products

Veterinary products

Cosmetics

 

Sanitation requirements on interstate travel

Control of disease on products

Sperm donation for assisted reproduction

 

United States Department of Agriculture (USDA) Regulated Products

 

Meat

Poultry

Chicken-broiler-01

Egg products

   

National Highway Traffic Safety Administration (NHTSA) Regulated Products

 

Vehicle safety

Vehicle recalls

Child safety seats

Toyota_rav4_tilt_seat

Airbags

Airbags_story_landscape

Safe auto parts

Tire safety

Bad tire

Steering components

Fuel system components

Accelerator controls

Wheels that crack or break

Cracked wheel

Engine cooling fan blades that break

Windshield wiper assemblies that fail

Seats and/or seat backs that fail

Critical vehicle components that break

Wiring system problems that result in a fire

Img-vehicle-fire

Car ramps or jacks that may collapse

Air bags that deploy incorrectly

Child safety seats that contain defective safety belts

 

Child ejection
___________________________________________________________________

HIGH COSTS TO STATES

No other state in the Nation has a law like this.  The only state that is close is Michigan, which has a provision that deals only with immunity for Drug Manufacturers who receive FDA approval.  Other states have had lesser versions of this bill but none had given complete immunity.  This is an interesting history of "FDA defense" bills:  http://www.centerjd.org/archives/studies/MIDrugImmunityF.pdf

As a result of Michigan's "FDA Law", the State of Michigan lost $82 MIllion dollars in "refunds" from the manufacturer of Vioxx who was accused of falsifying safety records to the FDA.

One of the reasons Michigan passed the law in 1995 was to attempt to keep Merck and Pfizer as empoloyers in the state.  Michigan passed the law and Merck left anyhow.   also In 2007, Pfizer announced plans to completely close the Ann Arbor, Nagoya and Amboise Research facilities by the end of 2008, eliminating 2,160 jobs and idling the $300-million dollar Michigan facility.


Can North Carolina afford to give a pass on the safety of all of these items?

Vioxx cost Michigan $82 million in additional Medicaid costs.  Michigan can’t recover those damages from Merck because of the "FDA defense." If this bill is enacted, NC Medicaid and NC taxpayers will also be left holding the bag.  The Michigan Court of Appeals affirmed this "defense" on March 11, 2011.

These questions need to be asked: 

WHY DOES THE LEGISLATURE WANT TO MAKE NC THE DUMPING GROUND FOR DANGEROUS AND DEFECTIVE PRODUCTS, WITHOUT CREATING A SINGLE JOB? 

WHY WOULD THE LEGISLATURE LEGALIZE THE SALE OF DANGEROUS DRUGS?

HOW DID NC GET THIS PROPOSED LAW?

How did this "law" get to North Carolina?  It got here from ALEC, the "American Legislative Exchange Counsel" a libertarian and conservative think tank funded by big industry with their goal of protecting corporate interests from any safety regulation.

Who funds ALEC?  If you go to the link you will find a long list of manufacturers, drug makers, industrial polluters, and other "mega corporations".


WHAT CAN I DO??    IF YOU DON'T THINK THIS IS A GOOD IDEA FOR  NC, PLEASE CONTACT ANY MEMBER OF THE HOUSE SELECT COMMITEE ON TORT REFORM:

You can find them at NC House Select Committee on Tort Reform.   Or here:  http://www.ncga.state.nc.us/gascripts/Committees/Committees.asp?sAction=ViewCommittee&sActionDetails=House%20Select_127

Send them an email or a letter.  Or give them a call.  They meet tomorrow (Thursday, March 31) at 11 am.  Act now, before it is too late.

Chris Nichols

 

www.NicholsTrialLaw.com 1.800.906.5984

North Carolina Legislature wants to give immunity from law suits to manufactures of deadly products that kill and maim people and destroy property

The North Carolina House is set to discuss a "tort reform" Bill tomorrow H542 (they have not "officially" released it but NC Trial Law Blog has an advanced copy you can see here:  Download Big Bill Tort Reform) that would grant immunity from suit to any product "regulated" by a State or Federal Agency.

UPDATE:  4:24 pm March 30, 2011:  The Bill has finally been filed, all of 18 hours before it is to be debated.  House Bill 542

Here is the relevant language: 

No manufacturer or seller shall be held liable in any product liability action if:

1. The product alleged to have caused harm was designed, manufactured, packaged, labeled, sold, or represented in relevant and material respects in accordance with the terms of approval, license or similar determination of a government agency, where the approval, license or similar determination is relevant to the event or risk allegedly causing the harm; or

2. The product was in compliance with a statute of this State or the United States, ...where the stature or agency action is relevant to the event or risk allegedly causing harm....

This is HUGE.

This means that a product regulated by ANY state or Federal agency would be immune from suit by North Carolina citizens who are hurt or maimed by the product which is eventually found defective.

Think:  bad tires, bad cars, Vioxx, bad drugs, toys containing lead or poison, etc.

Here is a "short" list of products whose manufacturers would be immune from a law suit if that product killed you or hurt you or someone you love.

Manufacturers of 328 Types of Products regulated and approved by the US Agencies will receive IMMUNITY from law suits for defective products that maim, kill and destroy property and people.

The manufactures of defective products would receive immunity from suit because the agency is "vested with the authority of this State or of the United States to issue rules, regulations, orders, or standards, concerning the design, manufacture, packaging, labeling, or advertising of a product or a service." Tort Reform for Citizens and Businesses: Section 3.1(b) amendment to Chapter 99B-1 (1a)

 

US Consumer Product Safety Commission (USCPSC) Regulated Products

 

Acetaminophen (products containing)

Acetic acid (products containing)

Adhesives -containing methyl alcohol

Adhesives -extremely flammable contact

Adhesives -floor covering

Adhesives nitrocellulose base

Aerosols (see self-pressurized products)

Ammonia, ammonia water (products containing) household, ammonium hydroxide

Antennas – CB base station and TV

Antennas -Omnidirectional CB base station

Antifreeze, ethylene glycol

Antiquing kits

Appliances, coal and wood-burning

Architectural glazing materials

Art Materials

Artist's paints

Asbestos- containing patching compounds

Asbestos -containing garments for general use

Aspirin products

Baby bouncers & walkers

Baby playing with toy

Balloons, plastic mixtures

Batteries, storage, wet-cell

Benzene paint solvents containing

Bicycles

Bicycle helmets

Biological specimens, preserved

Blasting caps

Bunk Beds

Butane in cigarette lighters

Carbolic acid (phenol) (products containing)

Carbon tetrachloride (products containing)

Carpets and rugs (large)

Carpets and rugs (small)

Caustic poisons (products containing)

Caustic poisons – potash (products containing)

Caustic poisons – soda (products containing)

Cellulose insulation

Cellulose sponges

Charcoal briquettes

Chemistry sets

Child-resistant packaging (see special packaging)

Chlorofluorocarbons, self pressurized products containing Acetonitrile (see glue remover)

Aluminized polyester film kite

Asbestos -containing artificial emberizing materials

Benzene (products containing) benzol

Bergamot oil (products containing)

Betamethasone (products containing)

Children's Products (see "Toys/Children's Products")

Cigarette lighters

Cleaning products

Clothing (see wearing apparel, sleepwear)

Coal burning appliances (see appliances)

Combustible hazardous substances

Conjugated estrogen tablets (products containing)

Consumer product

Containers consumer-owned (portable)

Controlled drugs (products containing)

Corrosive substances (products containing)

Cosmetics

Cribs -full size

Cribs -non-full size

Cribrecall2010-370

Cushions, infant

Cyanide salts (products containing)

Dietary supplements, iron-containing (products containing)

Disclaimer deceptive use of

Dive Sticks

Drain cleaners, liquid

Drugs, Oral Prescription -All Exceptions

Drugs -controlled

Drugs -iron containing

Drugs -oral prescription

Vioxx

Drugs -over the counter

Dry-cleaning solvents

Epoxy resins

Ethylene glycol (products containing)

Ethylene glycol in felt pads

Exports (noncomplying products)

Extremely flammable contents of self-pressurized containers

Extremely flammable hazardous substances

Extremely flammable solids

Eye irritants (products containing)

Fabrics

Felt-tip marking devices

Cholestyramine, anhydrous (products containing)

Clacker balls

Colestipol (products containing)

Dibucaine (products containing)

Diethylene glycol (products containing)

Diethylenetriamine (products containing)

Diglycidyl ethers (products containing)

Diphenhydramine preparations

Emberizing materials artificial, containing asbestos

Erythromycin ethylsuccinate, Suspension & granules

for suspension (products containing)

Erythromycin ethylsuccinate, tablets (products containing)

Ethanol containing mouthwash

Ethylenediamine (products containing)

Ferrous oxalate (products containing)

Fire extinguishers

Fireworks

First Aid

Flammable contents of self-pressurized containers

Flammable solids (products containing)

Flammable substances (products containing)

Fluoride (products containing)

Food

Formaldehyde (products containing)

Fuel

Furniture painted with lead containing paint

Furniture polish -liquid

Furniture polish -paste

Garage Door Openers- automatic residential

Gasoline

Glazing compounds

Heaters (see appliances)

Highly toxic substances (products containing)

Household substances

Hydrocarbons

Hydrochloric acid (products containing)

Ibuprofen (products containing)

Imported products & importers

Imports

Industrial supplies

Infant cushions

Ink cartridges dry concentrate containers

Ink-marking devices

Insulation, cellulose

Iron preparations

Irritant substances

Kerosene

Kindling & illuminating preparations

Labels

Laboratory chemicals (if educational)

Lacquers

Lawn darts

Lawnmowers power

Fertilizersdry

granular

Fuel kits with diflouro dichloromethane

Glue remover containing acetonitrile (household)

Hartshorn (products containing)

Hypochlorous acid (products containing)

Isobutane in cigarette lighters

Isosorbide dinitrate -prescription sublingual and chewable forms (products containing)

Ketoprofen (products containing)

Kites aluminized polyester film

Lead in paint (products containing)

Lighter fluid, etc. (products containing)

Lunar caustic (silver nitrate) (products containing)

Lye (products containing)

Matchbooks

Matches

Mattresses (cigarette ignition)

Mattresses (open flame ignition)

Methyl alcohol (methanol) (products containing)

Mineral oil in toys (products containing)

Mineral seal oil (products containing)

Mineral spirits (products containing)

Minoxidil (products containing)

Mirrors

Mixtures of hazardous substances

Mouthwash containing ethanol

Multiple hazard substances with

Multipurpose Lighters

Lighter

Naphtha (products containing)

Neutralizers, Permanent Wave (see Permanent Wave Neutralizers)

Nitric acid (products containing)

Nitroglycerine prescription (products containing)

Oral contraceptives

Orris root powdered (products containing)

Over-the-Counter (OTC) Drugs (see Drugs, Over the Counter)

Oxalic acid and salts (products containing)

Packages, child resistance (see child-resistant packaging)

Packages, sample

Paint (lead in) (products containing)

Paint solvents

Painting kits

Paper items

Patching compounds containing asbestos

Percussion explosives

Lidocaine (products containing)

Loperamide (products containing)

Mebendazole (products containing)

Medroxyprogesterone acetate tablets (products containing)

Methacrylic acid (products containing)

Methylprednisolone (products containing)

Methyl salicylate (products containing)

Naproxen (products containing)

Nitrites (Butyl and Volatile Alkyl)

Norethindrone acetate tablets (products containing)

Pacifiers (see Toys/Children's Products)

Pancrelipase (products containing)

Paraphenylenediamine (products containing)

Perchloroethylene in visual novelty devices

Petroleum distillates

Photographic color processing kits

Plant foods -dry granular

Poisons, caustic (products containing)

Polishing products

Potassium hydroxide

Prescription Drugs (Oral)

Pressure-generating substances

Propellant devices for model rockets

Radiator cleaners

Radioactive substances

Refrigerator doors

Refuse bins -unstable

Roof coatings

Rope, cord, string, etc.

Rugs see Carpets

Rubber vulcanizing products

Self-pressurized products

Self-pressurized products containing vinyl chloride

Sensitizers (products containing)

Signal words

Sodium hydroxide

Solder kit

Solder paste

Permanent wave neutralizers containing sodium bromate or potassium bromate

Phenol (carbolic acid)

Photodynamic sensitizer

Potash, caustic

Potassium supplements effervescent

(products containing)

Prednisone

Primary irritant

Sacrosidase (sucrase) in a solution of glycerol and water

Salt (sodium chloride)

Self-pressurized products containing chloroflorocarbons

Silver nitrate (lunar caustic)

Sleepwear, children's, sizes 0-6x & sizes 7-14

Sodium arsenite

Sodium fluoride

Sodium/potassium hydroxide

Special packaging

Spot removers single-use

Spot removing kits

Sponges, cellulose

Swimming pool slides

Tank coatings

Thread, string, twine, etc.

Turpentine (products containing)

Varnish

Video games

Vienna paste (products containing)

Vinyl chloride (products containing)

Solvents (for Paint and other surface coatings)

Stoddard solvent

Stoves, coal & wood burning

Strong sensitizers

Sulfuric acid

Toluene (toluol)

Toxic substances

Toys/Children's Products- All

Toys/Children's Products- choking hazard warnings for small parts, balloons, marbles, balls

Toys/Children's Products- balls, small

Toys/Children's Products- caps & toy guns producing, impulse-type sound

Toys/Children's Products- choking incidents

Toys/Children's Products- clacker balls

Toys/Children's Products- electrically-operated toys and children's article

Toys/Children's Products- games, self-pressurized -hollow plastic toys games

Toys/Children's Products- marbles

Toys/Children's Products- mineral oil

Toys/Children's Products- painted with lead or containing lead

Toys/Children's Products- pacifiers

Toys/Children's Products -rattles

Toys/Children's Products -sharp edges

Toys/Children's Products -sharp points

Toys/Children's Products -small parts

Choking-hazard-label

Toys/Children's Products -model rockets

Toys/Children's Products -model rockets, propellant

Toys/Children's Products -train smoke

Toys/Children's Products -use and abuse tests

Toys/Children's Products -tubes, collapsible metal (labeling)

Toys/Children's Products -unpackaged hazardous substances (labeling)

Vinyl plastic film

Walker-jumper

Wax containers

Waxes, paste for autos, furniture, floors and shoes

Wearing apparel

Writing instruments

Visual novelty devices -containing perchloroethylene

Volatile flammable materials

Water-repellent mixtures (masonry)

Wood burning appliances

Xylene (xylol)

 

Federal Drug Administration (FDA) PRODUCTS

 

Food safety

Rotten-meat-in-slices-thumb17104917

Tobacco products

Dietary supplements

Prescription and over-the-counter pharmaceutical Drugs

Vaccines

Biopharmaceuticals

Blood transfusions

Blood-transfusion-infections

Gene therapy

Cell and tissue based products

Medical devices

Electromagnetic radiation emitting devices (ERED)

cellular phones

airport baggage screening equipment

television receivers

microwave ovens

tanning booths

laser products

Veterinary products

Cosmetics

 

Sanitation requirements on interstate travel

Control of disease on products

Sperm donation for assisted reproduction

 

United States Department of Agriculture (USDA) Regulated Products

 

Meat

Poultry

Chicken-broiler-01

Egg products

   

National Highway Traffic Safety Administration (NHTSA) Regulated Products

 

Vehicle safety

Vehicle recalls

Child safety seats

Toyota_rav4_tilt_seat

Airbags

Airbags_story_landscape

Safe auto parts

Tire safety

Bad tire

Steering components

Fuel system components

Accelerator controls

Wheels that crack or break

Cracked wheel

Engine cooling fan blades that break

Windshield wiper assemblies that fail

Seats and/or seat backs that fail

Critical vehicle components that break

Wiring system problems that result in a fire

Img-vehicle-fire

Car ramps or jacks that may collapse

Air bags that deploy incorrectly

Child safety seats that contain defective safety belts

   

Child ejection
___________________________________________________________________

HIGH COSTS TO STATES

No other state in the Nation has a law like this.  The only state that is close is Michigan, which has a provision that deals only with immunity for Drug Manufacturers who receive FDA approval.  Other states have had lesser versions of this bill but none had given complete immunity.  This is an interesting history of "FDA defense" bills:  http://www.centerjd.org/archives/studies/MIDrugImmunityF.pdf

As a result of Michigan's "FDA Law", the State of Michigan lost $82 MIllion dollars in "refunds" from the manufacturer of Vioxx who was accused of falsifying safety records to the FDA.

One of the reasons Michigan passed the law in 1995 was to attempt to keep Merck and Pfizer as empoloyers in the state.  Michigan passed the law and Merck left anyhow.   also In 2007, Pfizer announced plans to completely close the Ann Arbor, Nagoya and Amboise Research facilities by the end of 2008, eliminating 2,160 jobs and idling the $300-million dollar Michigan facility.


Can North Carolina afford to give a pass on the safety of all of these items?

Vioxx cost Michigan $82 million in additional Medicaid costs.  Michigan can’t recover those damages from Merck because of the "FDA defense." If this bill is enacted, NC Medicaid and NC taxpayers will also be left holding the bag.  The Michigan Court of Appeals affirmed this "defense" on March 11, 2011.

These questions need to be asked: 

WHY DOES THE LEGISLATURE WANT TO MAKE NC THE DUMPING GROUND FOR DANGEROUS AND DEFECTIVE PRODUCTS, WITHOUT CREATING A SINGLE JOB? 

WHY WOULD THE LEGISLATURE LEGALIZE THE SALE OF DANGEROUS DRUGS?

HOW DID NC GET THIS PROPOSED LAW?

How did this "law" get to North Carolina?  It got here from ALEC, the "American Legislative Exchange Counsel" a libertarian and conservative think tank funded by big industry with their goal of protecting corporate interests from any safety regulation.

Who funds ALEC?  If you go to the link you will find a long list of manufacturers, drug makers, industrial polluters, and other "mega corporations".


WHAT CAN I DO??    IF YOU DON'T THINK THIS IS A GOOD IDEA FOR  NC, PLEASE CONTACT ANY MEMBER OF THE HOUSE SELECT COMMITEE ON TORT REFORM:

You can find them at NC House Select Committee on Tort Reform.   Or here:  http://www.ncga.state.nc.us/gascripts/Committees/Committees.asp?sAction=ViewCommittee&sActionDetails=House%20Select_127

Send them an email or a letter.  Or give them a call.  They meet tomorrow (Thursday, March 31) at 11 am.  Act now, before it is too late.

Chris Nichols

 

www.NicholsTrialLaw.com 1.800.906.5984

Medical Malpractice "reform" proposed in NC: Do it yourself tort reform release

The new GOP majority Senate in the General Assembly of North Carolina has just introduced the "wish list" of Medical Malpractice Tort Reform bills today.   Senate Sponsors:  Tom Apodaca(R), Tom Brown(R) and Bob Rucho(R).

This proposed Senate Bill S33 is a laundry list of of ways to limit the rights of normal citizens in NC.  While physicians may THINK this proposed Bill will help them, in reality, the bill is a giant GIFT to the insurance industry because it simply reduces the amounts of money insurance companies might have to pay in legitimate claims.  Or put another way, it  limits the recovery of individuals whom a jury have determined are truly injured by medical negligence.

Here is a quick rundown on the Bill and my comments on the reality of the provisions.

EMERGENCY MEDICAL CARE- If your emergency room doctor commits negligence, you can't sue them. You can only sue if they are GROSSLY negligent, like, if they were drunk. So, when the ER doc gives your spouse an injection of penicillin, even though her medical chart says she is severely allergic to it, and she dies- too bad.  Gross negligence is a very high standard in North Carolina.

BIFURCATION OF TRIALS ON ISSUES OF LIABILITY AND DAMAGES in any case over $75,000.

This means that in any case with a value of over $75,000 (which is almost every medical malpractice case out there) you essentially have two trials.  The first part is on the question of negligence.  Did the doctor make a mistake.  The second part is on the damages.  Sounds tempting and simple but the real reason behind this is two fold.  First, it makes trials longer and more costly for the injured party.  Many witnesses who could testify once, now have to testify twice.  Experts are very expensive, sometimes $5,000 per day.  Insurance Companies have nearly unlimited resources to bring in experts.  Injured people do not.  Second, by keeping out the damages, the jury does not have any idea how badly the mistake has affected the injured person. This "depersonalizes" the case which is an advantage to the Defendant.

LIMITING THE AMOUNT OF NONECONOMIC DAMAGES THAT MAY BE AWARDED ($250,000 cap on damages) As used in this section, 'noneconomic damages' means damages to compensate for pain, suffering, emotional distress, loss of consortium, inconvenience, physical impairment, disfigurement, and any other nonpecuniary, compensatory damage. So if your child is burned on 90% of their body in a negligent surgical fire, they get about $3,000 a year for life.  And of course, this cap on damages ONLY affects people who have a legitimate case, i.e., some one whom a jury has just determined is injured as a result of negligence.  This cap also disproportionately effects retired people who do not have future lost earnings.  And of course, this means insurance companies can get off cheap, even if a jury thinks a higher amount is warranted.

BY AUTHORIZING THE PERIODIC PAYMENT OF FUTURE ECONOMIC DAMAGES IN LIEU OF A LUMP-SUM PAYMENT.  Basically, this is in there because if the person who is awarded damages by a jury dies later, their family will not inherit the money. It will go back to the insurance company.

MODIFYING APPEAL BONDS IN MEDICAL MALPRACTICE ACTIONS. This just makes it cheaper for insurance companies to appeal when they lose.

If approved, this act becomes effective October 1, 2011. (Better go to the doctor now.)

When "tort reform" was being debated on the Federal level, I produced a mock "Do It Yourself Tort Reform Release" which tried to demonstrate the reality of what the law makers were proposing.  It got picked up by some national press and "went viral," in as much as something about the law goes viral.

So, if you just can't wait for Medical Malpractice "tort reform", just download this handy form, sign it, and take it to your next doctor's appointment.

I was hoping I would never have to resurrect this link, but here it is:  Download Do It Yourself Medical Malpractice Tort Reform Release 2011

 

Do it Yourself Medical Malpractice Tort Reform Release

 

 

 

www.NicholsTrialLaw.com 1.800.906.5984

Terrible News for Wake County: Garner ConAngra Foods plant explosion

CNN and WRAL are reporting that two people were found dead and a third person is still believed missing in a Garner food plant heavily damaged in a morning explosion.

Four people were in critical condition after the explosion at the ConAgra Foods plant in the town of Garner and 20 others were taken to area hospitals.  It appears that the worst of the injured suffered severe burns.
 
This is an unwelcome and sadly familiar feeling for our area after the plant explosion in Apex. 
 
I noticed in my search on the Internet for news about the explosion that law firms from out of the  state of North Carolina are already posting about the explosion.  I hope that these posts are part of an overall reporting of industrial accidents rather than simply an attempt to attract business. Even with law, the idea of "buying local" makes sense.
 
Thankfully, Raleigh and Garner have many talented lawyers experienced in industrial fires and explosions and the claims resulting from them.  As anyone from North Carolina can tell you, the worst industrial accidents was the fire at Imperial Foods chicken processing plant in Hamlet in 1991.
 
According to official reports, twenty-five (25) people died and another forty-nine (49) were injured as the result of a fire in the Imperial chicken processing plant. Witnesses at the scene described that workers could not get out of exit that were padlocked by the plant management to prevent vandalism and theft.
 
There is an excellent article on the investigation and eventual prosecution of the owner of the Hamlet plant on Wikipedia found here.
 
I sincerely hope that the ConAgra Plant had no safety violations like the Hamlet Plant.
 
Interestingly, the Wikipedia entry for Hamlet says that some of the Hamlet fire victims hired an out of state lawyer  who handled the Bhopal chemical disaster in India but that that lawyer did not qualify to practice in North Carolina.
 
I send thoughts and prayers to the families of the injured and killed.
 
 
Chris Nichols
Raleigh, NC
 
 
 

www.NicholsTrialLaw.com 1.800.906.5984